Bl:Oh1fldvr:iCOOilTiOi' APPE,AL8.-.JURilSDICTION-REVENUB ApPzi... ." , p. 828,) a juillrment of Under the judiciary act of March 3 1891, (26 St. at the circuit court, on an appe,al from the decision of the'l)oard of general appraisers, is reviewable, not in'thesupreme court, but in the cil::cuit cou,rtef appeals, tM case being one ,revenue laws."
B.

An,appeal by the States from the judgment of the circuit court, on an a'll,pe,aui',0111 th,e ,00,ard, Oflte,n,eral ',appra,isers,,can, only ,b"e allowed l?n the applieatlpn c!l'lId thll,J)i!'me Of the attoroey general, whe? the record does not show that 'the C\lt1rt IS of opInion that the question involved 18 of' such importance as to reo :' 'quire anappea!. But Where such an appeal is, irregularlY taken, in tbe name of :",the, cqU,Elctor port,by the (}jlltrict attorney, and the parties admit, in thecir· cuit' clQun of appeals, that Bame was In fact taken by direction of the attorney genappeal may be aQI,&,Dded by substituti!1g, his ,ersl,and oonsent that, tlbe nlloQle .tort\lat tbe oollectQr, the cirouit oourt of appealsh!loS jurisdiction to allow 'such amendment. ' , to address tbeoitatioIl, to the ,lmpo,t1.ing of to the individual partners, bilt suoh irregularity is oured by the appearance of tbepartners in tllle appellate court without making any ob:', 'JClilItioIl. ' ' , : :

'

'- .APt>it!.u,:...CiUtION-PABTNIllRSJlIP. Onauoh' an appeal it is 'all irregularity

AppeaHrOni the Circuit. Court of the United States for the District of Massachusetts. '''!,If! ! , Petition for a review of:. decision of th9 bOllrd of :genel'alll,ppraisers assessing a duty of 12 cents a pound on,oertain goat hair. The circuit court reversed such decision,hOldingtbat the hair ,was embraced in the free list. 48 Fed. Rep. 6aO. The UnitedState!l appeals. Reversed. F'rct7lkD.AUen. U.S. Atty., and HfffI3'Y .A. Wyman, Asst. U. Atty. JowUih P.7\&cke'r, for appellees. Befute,.GRAY, Circuit'Justice. PUTNAM, Circuit Judge, and NELSON, District Judge.

GRAY, Circuit Justioe. This was a petition to the circuit court by .Tohn Hopewt>ln, Jr., Ollndus F.Kendall; and Frank Hopewell, representing that theywere 4'partners in trade; doing business in Boaton under the firm name of L. C. Chase & Co.," and signed, "L. C. Chase & Co., Petitioners, by J. P. Tucker. Attorney," praying for a review, untler the act of June 10, 1890, c. 407, § 15, of a decision of the board of general appraisers, affirming a: decision of the collector of the port of Boston and Charlestown, assessing on two bales of goat's hair, imported by the ptJtitioners, a duty at the rate of 12 cents a pound, under paragraphs 377 and 384 of Schedule K of the tariff' act of October 1, 1890, c. 1244, imposing such a duty on "hair of the camel, goat, alpaca, and other like animals." The petitioners, having duly protested against the assessment, contended that their goods should have been

UNITED STATES

v.

HOPEWELL,

admitted, free, under paragraph 604 of the free list, as'i,bair ofborse,: cattle, ,br other animals," "not specially pr.ovided forin1.his act." The board ofgerieral appraiSers;pul'suarit to anotderof the court; made a return of the record and evidence, together with a certified statementof facts involved, and of their decision thereon, by which it appeared that the appraisers found "that the article in question is common goat hair, atid that it is unfit for combing purposes," and that their decision that it was duly assessed was based' on their former decision in a like' case. 'General Appraisers' Decisions, Nos. 280, 691. Under another order of the court,referring the case to one of those appraisers to take and returo such further evidence as might be offered by the petitiuoersor'by the collector, heretumed that the only evidence offered by either party was a stipulation, which was sign{ld by counsel, and W8S88 follows: ' "'If material, it Is agt"eed that wool known as Leicester, Cotswold, shire, Down wools,Canada long wools, and hair of the camel and alpaca. are all fit,adapted. and'used for combing purposes; that there are !<i'ashmere and Angora, which produce hair kinds Qr breQds. fit and. for purposes; that goat hair in this case is simi· and adaptabihtr to use to the haIr of horses and cattle." lar in Its, , The cireuit court, for the reason stated in the opinion of COLT, J., printed- in 48 Fed; Rep. 630, adjudged that the decision of the board of geriera,lappraisers be reversed, and that the sums paid by the peti,tioners for duties be refunded. Within 30 days after that judgment the United States, "by the 'collector of the ·port of Boston and Charles\town," appealed to this court; and the petition to the circuit courHor the 8110Wance of the appeal, as well 8S the assignment of errors, was signed by the district attorney of the United States, as "attorney for the col\ 'lector." Tbecircuit court thereupon allowed the appeal, and issued a Citation to "L. C. Chase & CO.· a firm business in Boston, in the state and district of Massachusetts, in which firm John Hopewell, .Jr., !O.F. Kendall, and Frank Hopewell are the partners;" and sufficient 'ser'Vice of this citation wll.S acknowledged by the attorney for the appellees. ' , , By sections 14 and 15 of tbe act of June 10,1890, c. 407, entitled "An act to' simplify the laws in relation to the collection of the revenues,"tbe'-question of the rate and amount of duties chargeable on importedg6&ds; which might previously have been tried by suit against thecollectoJl, is to be tried by appeal from his decision to the board of p;eneralappraisers constituted by that act; the decision of that board may be reviewed by the circuit court on application of either party; and that,court, when it is of opinion that the question involved is of such importance as to'require it, may allow an appeal from its decision to the supreme court of the United States,"but an appeal shall be allowed on thEi part of the United States whenever the attorney general shall 'apply fodt within thirty days after the rendition of such decision." 268t.131, 137, 138. But ;since the judiciary act of March 3,1891, 0; 517 ,'Wok eftect, the case being one" arising under the revenue laws,"

I

I

800
tbEl'!appealfrotn the judgment of the circuit court lies to this 26 St. p. 828;: U.;S. v. Hill, 123 U. S. 681, 8 Sup. Ct. Rep.,30:8;Lau Ow Bew .v.U. S., ,144 U.S. 47, 12 Sup. Ct. Rep. 517; .Warehouse 00. v. Co1ledorof OuBtoms, 49 Fed. Rep. 561. In the case at bar the nppeal of the United States .from the judgment of· theciltcuitcourt was 'irregularly taken in the name of the collector of the port. It· should have been in the name of the United States, and, as the record does not show that. the circuit court was of opinion that the question involved ,was ofsufficient importance to require an appeal, it could be allowed only on the application of the attorney general of the United States. But, the irregularity having been'suggested by this court at the hearing, a motion .in writing has since been made by the district attorney "for and on behalf of the attorney general of the United States," to amend the petition for appeal and the assignment of by the errors, ,by, striking out the statement that the appeal was the attorney collector; by' stating that it was" upon the a general of the United States," and by substituting, for the original nature, .the following; H. Miller, Attorner General of the United b:Y'Frank D. A.llen, 'V. S. Attorney Massachusetts." And the appellees, m open court, have consented to the amendment, and have:admitted that the appeal was in fact taken by direction of the attorney general, and that this fact was brought to the attention of the circuit court before it allowed the appeal. By the appeal take,n in behalf of the United States by their. district· attorney, this to allow, amendcourt acquired jurisdiction 9f the case, and ments in regard to the.. officer by whom· or in whose, name the appeal was claimed.. ' When, any question is made as to the allowance of such the. usual and propel' practice is to remand .the case to an the circuit court to deal with that question. But when, as ih thisoase, the parties.agree to the amendment, and to facts whidh justify and require it, th13 amendtnentmay be made in the appeUateconrt. Rev. St. §§ 954, 1005jFletche1·/v. Reck; 6 Cranoh, 87, 127; Kennedy v. Bank, 8 How. 586, 61l;Gdtes v; Goodloe, 101 U. S. 612; Boti.!den v. Johnwn, 107 U. S. 251, 2 Sup. Ct. Rep. 246. The record is therefore to be amended as'prayed for. ,There wasralso an irregularity, in addressing the citation to the firm in which the. appellees' were partners. when it should ,have been addressed to the appellees individually. But this mistake, if objected to, might have been cured by a new citation in proper form. Moore·v. Simond8,100 U. S. 145; EstiJJ v. Trabue, 128 U. S. 225, 9 Sup. Ct. R.ep. 58. The appellees having appeared generally in this court, without taking aniYobjection, this irregularity becomes immaterial. The duties in this case. were assessed. under paragraph 384 of Schedule Kof the tariff act of 1890, which imposes a duty of 12 cents a pound "upon all wools or hair of the second class," described in paragraph 377 ,as follows: "Class two, that is to say, Leicester, Cotswold, Lincolnshire, .Down combing wools, Canada long ,wools, or' other like combing wools of English blood, and usually known by the t!lrws hereill
i

UNITED STATES V. HOPEWELL.

801

used, and also hair of the camel, goat, alpaca, and other like animals." 26 St. pp. 594, 595. The question is whether, as held by the board of general appraisers, the article imported by the appellees came within those paragraphs, as "hair of the goat;" or whether, as held by the circuit coutt, it fell within paragraph 604 of the free list, which exempts from duty" hair of horses, cattle, and other animals, cleaned or uncleaned, drawn or undrawn, but unmanufactured, not specially provided for in this act." Id. p. 606. The facts found in the record, and on which this case must be decided, are that the wools specified in class 2, as well as the hair of the camel and of the alpaca, are all fit, adapted, and used for combing purposes; that there are breeds of goat, such as the Cashmere and the Angora, which produce hair fit for combing purposes; but that the goat hair in this case is common goat hair, unfit for combing purposes, and similar in its adaptability and use to the hair of horses and cattle. Upon the face of the act of 1890, and according to the clear and unambiguous meaning of its words, no wools, indeed, are included in class 2, except combing wools, or wools fit for combing; but there is no such restriction with regard to hair; and" hair of the camel, goat, alpaca, and other like animals," is subjected to a uniform duty of 12 cents a pound, to whatever uses or purposes it is or may be adapted; and goat's hair, being thus specified as subject to a particular rate of duty, is not comprehended in the clause relating to hair "not specially provided for in this act." Seeberger v. Cahn, 137 U. S. 95, 11 Sup. Ct. Rep. 28; Twine Co. v. Worthington, 141 U. S. 468,12 Sup. Ct. Rep. 55. This is hardly denied by the appellees. But they contend that a different result must be reached by comparing this act with previous tariff acts, and with the practical construction which those acts had received. It will be convenient, therefore, briefly to review the legislation upon this sJlbject. Bythe tariff acts ofl861 and 1864, "all wool unmanufactured, and all hair of the alpaca, goat, and other like animals. unmanufactured," were subject to a duty, varying according to the value of the article. The duties im posed by the act of 1861 were5 per cent. ad valorem if the value was less than 18 cents a pound, 3 cents per pound if the value was more than 18 and not exceeding 24 cents a pound, and 9 cents per pound if the value was more than 24 cents a pound. The act of1864 imposed duties of 3 cents per pound if value was 12 cents or less a pound, and an increasing scale of duties per pound as the value was greater, and also, if the value exceeded 24 cents a pound, 10 per cent. ad valorem. Acts March 2,1861, c. 68, § 12, (12 St. p. 183;) June 30, 1864, c. 171, § 4, (13 St. p. 206.) The tariff act of 1867 (re-enacted in the Revised Statutes) and the act of 1883 divided" all wools, hair of the alpaca, goat, and other like animals" into three classes, "for the purpose of fixing the duties to be charged thereon;" and those acts did not substantially differ from each other, or from the earlier acts, in any other particular bearing on this case, except in the amount of the duties imposed. The act of 1867 imposed on "wools of the second class, and upon all hair of the alpaca, v.51F.no.12-51

goat, ior: other. like aniOlala," the value 0f which, 32 cents orless a and also 11 per cent. ad valorem,
a cents per pound and 10 per The 80,tof .1883 ditrered only in substituting "thirty II and.in ,t,4e additional ad 'Valorem duty.. ' A-ct ,2,1867, 197,.{14 St. p. ,559;) Rev. St.. § 2,504, Schedule t, pp.,470, Act o. 121, § 6, (22 St. p. 508.) r!1eIri.aterial provisions ,of pJlrllgravhs 375-37,8 otSchedule K of the tariff.ct:of l890, of the, corresponding pll-ragraphs of the same act oLI88?, are j\s"fQllows, those, words of the act of are, omitted in the act ,oflR90 being printed in italics, and the. being inclosed ,in, prackets: alpaca, [camel. goat. alpaca.] alld ,shall,_ be divided, fur tbe plIrpose Qf 6xing the dutips to be thel'pon, into the three following classes: . " ' . Wools: ,That say, merino, mE'stiza. metz, or metl/1wools, ot other wol)ls of mermo blood. Imniedlate or remote, DoWn 'clotl1ihg woofs,lInd WOdlsoflike ctraracter with any of the preceding. us'-:have bl'ell heretofore usually iluported" into ,the United States Cllpe:of Good Hope. Russia. ,from Bllen08" Ayrps, NeW jGrellt ·. ;elsewl1ert', and also induding all wools not OII\Slll:'S two and three. " ,_ .lc;nass 'f,,'o-:-Oomlitng Wools. That is to 8ay, LeICester. Cotswold. ,Lincoln-shire; I)Qwn cofu1)i'tlg w.OlliS, Canada long WOol8, 'or other likt'combing: .wlIols'o! E.n'glish -bloOd; and 1I11111lHy known by the terms hprein ana also aU-bail': of tile atpaca, goat, [camel, goat, alpaca.} and other like aniWlIls. ,-.' · ,.,. . .,,' ,"f378.] ,Clas8 Thl're-O(ujPet Wools and Other Similar Wools. Such as rth.at is to Sl\YJ. :Qonskoi·, nlJtlve South American, C",rdllya, nati ve Smyrna. [ltusslancampl's hair.] and including all such wOllls of hke charactt'r'as have been heretofore'usually Imported Into the United States from Turk'ey, Greece. Egypt,Syria. andelsewllel'e."
.

'.

.

The construotion of the acts of 1867 and 1883 was by no means ,80 clear, or So well settled, as to afford a safe guide in the decision of this Pllse.. Wht:ther tholle,acts areconsigered' by themselves, or in connection with the earlier therel is certainly strong ground for the argpment that the titles "Clothing Wools j " 'I Combing Wools," and "Carpet Wools Wools," were inserted by way of convenient classification onlr, andnQfby way of description or definitionot ,the ul,tture or Ulle oLthe attiolell rangetlunder any cIas!'!, and that congress kind of goat's hair freE'. The only legal did lnot cited at the bar,,(besides thatot the circuit court in the present case,) in favor of the opposrte view, were given under the act of !1p.d;consistof two rulings, no reasons for which are reported, of Judge judge for the, eastern district ofPermsylvania,-the one in ,U. v.McNeely, referred toin Tr,eas. Dec. 1881, (No. 7,999,) and the Dob8O'(l. v. OOlmer,46 Fed. Rep. 184; and .an opinion of -tRIP-e.y the s!3,cretary pftbe,. trell,gu ry, J abuary 15, 1887, pro<reeding upon the ,misconception that the words "alpaca, goat,'! in the act of 1883, described, not two only, an "alpaca goat,"

UNtTED STATES tI. HOPEWELt,.

)

,";

,.

:,

","

':

'.,

' , '

;

.:

whereas the alpaca is of llama tribe, and more akin to the camel than to the goat; and upon thecdnsequent misconstruction that the whole clause included only animals producing bai,r or wool like said " alpaca goat." 18 01'. Altye. Gen. The rUlings of the treusury department upon the extent of the second class of wools and hair, under the acts in force from 1867 to 1890, were varying and contradictory. Under the act of 1867, rulings were 'made that some kinds of goat's 'hair, 0'91 I1Hofcpmbitig, did not come withinqlass 2. Treas. Nos. 4,108, 5,743,6,707. Ano it was consequently llssumed, in the tarilfcompilation, reported by a committee of the senate, JanuarY 7, 1884, that "goat's and "goat's hair, common, n as well hair, unfit for combing or 8S camel's hair, were not dutiable under the act of 1883. 48th Cong. lst Sesd. Senate Report, No. 12, p. 108. Yet in 1885 and 1886 it was repeatedly ruled by Assistant Spcretltry Fairchild that, by the clear words of Schedule K of the act of 1883, all goat hair was dutiable at the same rate as wools of the second class. TreaS. Dec. Nos. 6,998, 6,999, 7,544, 7,614. The subsequent ruling of Secretary Manning to the contrary appears to' have been based on the opinions of Judge BUTLER and of the attorney general, above mentioned·. ' Id. No.7,99Q. But, whatever may have been the true construction of former acts, it is ,manifest that the provision on this subject in the exi!lting tariff act must be construed, not as a were revision or re-enltctrilent of prior ones, but as a new enactment, ll:lying down its own rule, and clearly expressing its own meaning. In the second class, it omits the, title "combing wools," the only expression which had afforded color for holding that no hair was included which was not' fit for combing. It afterwards uses the word "combing" in connection with wools only; and in the clause relating to hair the word "camel" is inserted, and the words "alpaca" and "goat" are transposed, so as to preclude all misapprehension as to what animals are specified. While it puts II Russian camel's hair" in the third class, it makes no provision as to goat's hair, except the general one in the second class; and it subjects all hair included in this class to a fixed duty of 12 cents a pound. In short, the present act not only clearly directs that all goat hair, without regard to its value, or to the purposes for which it is used or suitable, shall be subject to a of 12 cents a pound, but it avoids every form of expression which had created doubt or difficulty in the construction of earlier acts upon this 8ubject. The inevitable conclusion appears to us to be that, under the tariff act of 1890, goat's hair, even if not fit for combing, is subject to a duty of 12 cents a pound. Record of appeal amended as prayed for. Judgment of the circuit court reversed, and case remanded to that court, with directiona to affirm the decision of the bQ&fd of general ap-

prai8eD.

FEDERAL RllJP9RTICR,

voL 51.

In

EATON

et al.

, (Circuit Court, N. D. California. August 22,:
'N'os.11,6S4, 11,690.

1.VXOLl'!IONO:r Il1iJUNCTION-Qol'lTE!oIPT-HABEAS CORPUS. , '

," 11q"

oircuit C,ourt, order Q" injunction is not void because the necessary jl1rlSdlotionalfacts do not allpear on the face of the pleadings, and a person im· pI'illcmed for contemptinviolating. the same.is not entItled to release on habear
. . .. ','

The petitioners allege that a suit was court in and for the district of Idaho by the a corporatioll' agaillst the Miners' Union an order of inju l1y tion was issued, and se,id injunction, anq., were ap.ju.dged guilty dfcQntemptof the authprity court,andwere sente'nced to imvarious terwsill the COUl1ty jail of of Ada, in tl,lestate of Idah(), in imprisoned and detained byona dairnthat said()ircuitcourt ,110 jurisdiqti9n of said action, in tha:t iti,appearsupon the face filedin said action, and in that in point of l'll,ct, the said action il\IlQt of a, ,9ivil nll,tllre" at common ,Ja',V or. in equity, ""hereip the' arnoullt ill. ex,chlsive of interest, !:lnd ,costs,the surn or v.al,ue of ,$,2,000,; and tl,lat ,said action is not a suit iQ. which there is. a different states, ht which the ,matter iJ;idispute,exceeds, and costs, the sum of $2,,090; and petitionel1s, therefore, claim that the courthad.nojurisdiction to is-, sue the said qrder of injunction, or punish them for it. .,,, ' \ .,' ' . ',_ tpa,t the petitioners are ang that 110 other ground ofj,urisdiction appeared, the order of injl.1ncand ,contempt based upon it are nQt, void. 'rhe:supreme in Des Moines Na'l{. R. Co. v. Iowa settled by this court ll.very early day, )lIld the circuit courts might. be erroneous, if the records failed to show the facts on which the tion of the court rested, such as that the plaintiffs were citizens' of different states from the defendants, yet that they were not nullities, and would bind the parties until reversed or otherwise set aside. In Skillern's Ex'r8 v. May's Ex'rs, 6 Cranch, 267, the circuit court had taken jurisdiction of a suit and rendered a decree. The decree
brought in' the